ETHIRAJA NAICKER Vs. KRISHNAN

JUDGEMENT

(1.) This second appeal is preferred against the judgment and decree, dated 17.1.1989, rendered in A.S.No.58 of 1988 on the file of District Judge, Chengalpattu. The plaintiff is the appellant herein.

(2.) The case of the plaintiff is briefly as follows. The plaintiff is the eldest son of defendant No.1 and defendants 2 to 4 are his other sons and they constitute a joint Hindu Family. The suit properties are undivided Hindu Joint Family properties of the plaintiffs and the defendants. Pending the suit, the first defendant died leaving behind the plaintiff and defendants 2 to 4 as his legal heirs. The plaintiff is entitled to 1/4th share and the defendants 2 to 4 are entitled each to 1/4th share in the properties. The joint family owned 60 goats, which multiplied in number and they were sold for good price. Later, rams were purchased by the joint family and they were sold and lands were purchased by defendant No.1 for the joint family. The plaintiff, who was employed in Forest Department, raised casuarina crop in plaint item 7 and it was sold and the money was utilised to discharge debts as well as to pay the purchase money for purchasing item 7 in the name of his mother. The plaintiff's sister Rukmani Ammal died about 20 years ago, issueless. The plaintiff and the defendants are her legal heirs and they are entitled to equal share. The plaintiff and the defendants, out of their own earnings and joint exertions, purchased several items of properties and they were treated as joint family properties. The plaint 8th item of Punja land was purchased in the name of their mother Annapurani Ammal during the year 1963 for the benefit of the joint family and she died in the month of April, 1976. In fact, out of the joint family funds, a Well was sunk in that property and an Oil Engine was fixed. Plaint items 9 and 10 were purchased in the year 1970 in the name of defendants 2 and 3 by raising loan over plaint items 1 and 5 from Doraiswamy Naicker's son-in-law. Defendants 2 and 3 have no independent earnings and defendant No.4 is yet to be married. The plaintiff, though having a separate residence with his maternal uncle, the properties are in joint possession with the defendants and enjoyed as undivided Hindu Joint Family properties. The defendants 2 and 3 took defendant No.1 to Sub-Registrar's Office at Thiruporur and created a fraudulent deed in their names by exercising undue influence and coercion on him with regard to plaint items. From that onwards, there was difference of opinion between the plaintiff and the defendants. There are sixty palmyrah trees in plaint item 9 and 5 coconut trees, 1 mango tree, 15 poovarasa trees and 1 palmyrah tree in plaint item 8 along with a Well. There are about two tamarind trees in plaint item 12. The Wells in the suit properties were sunk by the plaintiff and the defendants and they are in joint possession. The plaintiff is living in the suit property. A sum of Rs.1,000/- has been lent out of the joint family funds to Venkataragavachari over his lands in S.No.249/2 in an extent of 0.18 cents and in S.No.249/3 in an extent of 0.76 cents and the plaintiff is also entitled to 1/4th share in that outstanding amount mentioned in 'B' schedule. There are moveables as well as jewels mentioned in 'C' schedule, in which, the plaintiff is entitled to 1/4th share. Inspite of demands, the defendants are not coming for an amicable sharing of the properties. Plaintiff issued a notice on 22.2.1977 and no reply was received from the defendants. Hence the plaintiff has filed the suit seeking a preliminary decree for partition of his 1/4th share in the suit properties and for division of those properties by metes and bounds.

(3.) Defendant No.1, when he was alive, filed a written statement in the suit in which he contended as follows. There was no ancestral nucleus or properties to be inherited by him at the time of his father's death. After the death of his father at Madras, defendant No.1 came to the suit village in his early years and settled there. He had no joint family property and out of his own exertion and hard work saved money by cultivating the lands of Krishnaswami Iyer of an extent of 2.00 acres on Waram basis. Later he cultivated the lands of Kuppa Iyer. Besides this, he and his wife, during "Karthigai" and festival days, used to sell 'pori' and 'avul' and out of that income, he purchased the properties in his own name for his own benefit. The mother of defendant No.1 purchased a house site in 1911, described as item No.11 in 'A' schedule, and defendant No.1 alone is entitled to that item. It is not the ancestral property. Later, defendant No.1 got assignment of item 12 on 7.12.1938 and it is his self acquisition. On 30.6.1941, item No.1 was purchased by him from one Adilakshmi Ammal for Rs.175/-. On 27.6.1946, defendant No.1 purchased item No.6 for a sum of Rs.300/- under a registered sale deed. Defendant No.1 purchased plaint item No.3 for a sum of Rs.300/- from Thayarammal. Item No.2 was purchased by him for a sum of Rs.300/- from Sundarammal and another in 1947. In S.No.362/17, defendant No.1 purchased 0-17 cents under a registered sale deed, dated 25.11.1963 for a sum of Rs.100/- from Rangasawami, which is a portion of item No.8. In that item, defendant No.1 is entitled to only 0-17 cents and not 0-37 cents as stated in the plaint. Defendant No.1 purchased item No.4 for Rs.500/- on 4.10.1967 from Devarjan and another. The above acquisitions are the self acquisitions of defendant No.1. Defendant No.1 has no interest in item Nos.6,7 and 9 of 'A' schedule. Item No.6 is owned by defendants 2 and 3, who had purchased the same for a sum of Rs.1,600/- from Janaki Ammal. Plaintiff is not entitled to any share in those items and they are not joint family properties. The averments in the plaint that the joint family had 60 goats, which multiplied in number and later rams were purchased and sold are denied. The averment that the plaintiff raised casuarina crop in item No.7 and its sale proceeds were utilised for discharge of debts as well as to purchase properties are denied. The further averment that the plaint item No.7 was purchased in the name of the mother by the plaintiff is not true. That item was purchased by defendants 2 and 3 out of their own funds for their benefit. None of the properties are joint family properties and they were never treated as such. Item No.8 is not owned by the family. No joint family fund was available for digging well or for improving it as alleged in the plaint. Item No.9 was purchased by defendants 2 to 4 benami in the name of their mother under a registered sale deed, dated 17.7.1964. Item No.10 was purchased by defendant No.3 with his own funds. Defendant No.1 was not taken to Sub-Registrar's Office to create a fraudulent deed by exercising undue influence or coercion upon him and no deed was executed. The trees mentioned in numbers are all exaggerated. Defendant No.1 advanced a sum of Rs.2,000/- to one Venkataraghavachari over S.No.249/2 and 249/3. There are no moveables. The existence of 'C' schedule property in the plaint is denied. No jewel is owned by defendant No.1. With the funds provided by defendant No.1, the plaintiff constructed a house. In that house the plaintiff and the defendants are entitled to share. The suit is bad for non-joinder of that item. Plaintiff is residing separately since 1961 soon after his marriage and he is estopped from claiming any share in the suit properties.